Appellate Division: Second Judicial Department

M58619

S/sl

A. GAIL PRUDENTI, P.J.

REINALDO E. RIVERA

JOSEPH COVELLO

THOMAS A. DICKERSON, JJ.

2007-07139 Richard J. Ricca, etc., et al., appellants, v Steven P. Ouzounian, etc., et al., respondents. (Index No. 19595-07)

DECISION & ORDER ON MOTION

Motion by the appellants on an appeal from an order of the Supreme Court, Suffolk County, dated July 27, 2007, to enjoin the respondents, either individually or as a partner, employee, independent contractor, co-tenant, joint venturer, lessor, lessee, shareholder, licensee, as part of a clinic or salaried or attending staff position in a hospital, HMO, PPO, or similar healthcare delivery system, from (1) engaging in the practice of surgery, either directly or indirectly, within a 15 mile radius of the appellants' office located at 335A Meeting House Lane, Southampton, (2) soliciting or otherwise contacting any patient or any referral sources of the appellants, (3), disclosing to any person, firm, employer, or other entity, any professional secrets or information with respect to appellants, or any patients or referral sources of appellants, and (4) removing any records or information from the appellants' offices including without limitation, by memorization or recordation on any form of media, pending hearing and determination of the appeal.

Upon the papers filed in support of the motion, and the papers filed in opposition thereto, including the opposition papers filed by the proposed intervenor-defendant Southampton Hospital, it is

ORDERED that the motion is granted to the extent that the respondents are enjoined, either individually or as a partner, employee, independent contractor, co-tenant, joint venturer, lessor, lessee, shareholder, licensee, as part of a clinic or salaried or attending staff position in a hospital, HMO, PPO, or similar healthcare delivery system, from (1) engaging in the practice of surgery, either directly or indirectly, within a 15 mile radius of appellants' office located at 335A Meeting House Lane, Southampton, and (2) soliciting or otherwise contacting any patient or any referral sources of the appellants, pending hearing and determination of the appeal, except that the respondents are permitted to perform any surgeries already scheduled, on condition that the appellants (1) serve and file an undertaking with corporate surety in the sum of $250,000 in the office of the County Clerk of Suffolk County on or before September 4, 2007, in terms that if the order appealed from, or any part of it, is affirmed, the surety will indemnify the respondents if it is ultimately determined that the respondents sustained a loss due to the appellants ' conduct during the period that the injunction was in effect and (2) perfect the appeal on or before September 7, 2007, and the motion is otherwise denied; and it is further,

ORDERED that if the appellants fail to comply with either of the above conditions the court, on its own motion may vacate the injunction or the respondents may move to vacate the injunction on three days notice; and it is further,

ORDERED that the respondents shall serve and file their brief on or before September 28, 2007, and the appellants shall serve and file a reply brief, if any, on or before October 5, 2007; and it is further,

ORDERED no extensions shall be given for perfection of the appeal or the filing of briefs; and it is further,

ORDERED that the provision of the temporary restraining order contained in the order to show cause dated August 1, 2007, which directed the respondents to post an undertaking of $100,000 is vacated forthwith.

PRUDENTI, P.J., RIVERA, COVELLO and DICKERSON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court